Citation NR: 9601063
Decision Date: 01/23/96 Archive Date: 02/07/96
DOCKET NO. 94-09 126 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to increased evaluation for residuals of a shell
fragment wound (SFW) of the left upper arm, Muscle Group VI,
currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Teresa A. French, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Stanley Grabia, Associate Counsel
INTRODUCTION
The veteran had active service from August 1945 to September
1946. This appeal is before the Board of Veterans' Appeals
(the Board) as a result of a June 1993 rating decision of the
Department of Veterans Affairs (VA) regional office (RO) in
North Little Rock, Arkansas, which denied an increased
evaluation for residuals of a SFW of the left upper arm,
Muscle Group VI, currently rated as 10 percent disabling.
At his personal hearing before the RO, appellant raised the
issues of service connection for a nervous condition, and
emotional stress, headaches, and stomach disorders secondary
to the service connected SFW of the left upper arm. These
issues have not been prepared or certified for appellate
review. Consequently they are not currently before the
Board. Kellar v. Brown, 6 Vet.App. 157 (1994). They are
referred to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
Appellant contends that he is in constant pain from his
service connected SFW wound. It is asserted that the pain
has increased in severity so as to warrant a higher
disability evaluation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. §
7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against allowance of an evaluation in excess of 10 percent
for residuals of a SFW of the left upper arm, Muscle Group
VI.
FINDINGS OF FACT
1. All relevant available evidence necessary for an
equitable disposition of the veteran's appeal has been
obtained by the RO.
2. The veteran incurred shell fragment wounds to the left
upper arm, reportedly as a result of a training accident in
September 1945. The veteran is right handed.
3. Appellant’s service connected SFW of the left upper arm,
Muscle Group VI, is manifested by a 2 centimeter scar above
the tip of the olecranon process on the posterolateral aspect
of the arm. Pressure over the site of the scar is productive
of minimal discomfort. Appellant can flex his elbow and
extend his arm completely. There is no discomfort associated
with flexion or extension of the elbow. There was a slight
to moderate decrease in epicritic sensation to pinprick in
the distribution of the radial and median nerves on the left,
as compared to the right. Sensation in the ulnar nerve
appeared normal bilaterally, deep tendon reflexes were equal
and active.
4. The SFW residuals of the left upper arm, involving muscle
group VI, are no more than moderately disabling.
5. The veteran's service-connected disability does not
produce an exceptional or unusual disability picture with
related factors such as need for frequent hospitalization or
marked interference with employment such as to render
impractical application of regular schedular provisions.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 10 percent for
the residuals of a SFW of the left upper arm, Muscle Group VI
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38
C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.40, 4.41, 4.47-4.56,
4.72, 4.73, Code 5306 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A person who submits a claim for benefits has the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded. 38
U.S.C.A. § 5107. After reviewing the evidence on file the
Board concludes that the veteran's claim is well grounded
within the meaning of 38 U.S.C.A. § 5107(a). That is, the
claim presented is not inherently implausible. Furthermore,
the Board concludes that all facts pertinent to the plausible
claim have been developed and that as such, there is no
further duty to assist in developing the claim as
contemplated by 38 U.S.C.A. § 5107(a).
The Board must determine whether the evidence supports the
claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a fair preponderance
of the evidence is against the claim, in which case the claim
must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet.App. 49 (1990).
Any analysis of the disability evaluation to be assigned for
the residuals of a missile injury must begin with a
historical review of the extent of the original traumatic
injury, and the course of the residual disability in the
ensuing years. See 38 C.F.R.
§ 4.1, 4.2, 4.40, 4.41, 4.47-4.56, 4.72; Schafrath v.
Derwinski, 1 Vet.App. 589 (1991).
In September/October 1945 the veteran reportedly sustained a
SFW which entered the left upper arm, above the elbow, as a
result of a training accident. The service medical records
are not available. The separation physical reports no wounds
or scars. The unit morning report was obtained by the RO.
The report showed appellant was admitted to the base hospital
in October 1945 for an unspecified reasons.
The veteran filed his initial claim for service connection in
April 1980. A statement from a private physician, received
at the time, noted treatment for a SFW since 1971. The
fragment, reportedly had never been removed. There were
complaints of some left upper extremity numbness and
weakness. It was reportedly the examiner’s opinion that the
condition was getting worse.
The initial VA examination in September 1980 revealed a well
healed 1-1/2 centimeter scar located about eight centimeters
above the lateral epicondyle of the humerus on the posterior
lateral aspect of the arm. The scar was soft, pliable, and
non-tender. There was no evidence of neurologic or arterial
injury, and no muscle atrophy.
Service connection was initially established in a February
1981 rating decision. He was awarded a 10 percent evaluation
based on the residuals of a SFW of his left upper arm, muscle
group VI.
In October 1992 the veteran requested a reevaluation and
increase to his service connected disability.
VA records on file include the findings of nerve conduction
velocity studies conducted in March 1993. The studies of the
left median motor nerve, the left median sensory nerve, the
left superficial radial sensory nerve, and the left ulnar
sensory and motor nerves were all interpreted as being
normal.
In June 1993 the veteran was afforded an VA examination. The
veteran gave a history of how the SFW was incurred. It was
reported that there had been initial attempts to remove the
shrapnel, but that these attempts had been unsuccessful. The
veteran described increased symptoms in the last 4-5 years.
The examination report noted complaints of increased
sensitivity, pain when the arm is held in a dependent
position without support, and difficulty holding objects with
his left hand.
Physical examination of the left upper arm revealed a 2
centimeter scar above the tip of the olecranon process. The
scar was on the posterolateral aspect of the arm. Pressure
over the site of the scar was productive of minimal
discomfort. Pressure on the medial aspect of the arm, just
posterior to the distal portion of the muscular component of
the biceps muscle, resulted in a positive Tinel sign in the
forearm and fingers of the hand. Appellant could flex his
elbow and extend his arm completely. There was no discomfort
associated with flexion or extension of the elbow. Intrinsic
movements of the wrist and hands were well performed.
Appellant could compress 75 pound with his right hand, and 55
with his left. There was a slight to moderate decrease in
epicritic sensation to pinprick in the distribution of the
radial and median nerves on the left, as compared to the
right. Sensation in the ulnar nerve appears normal
bilaterally, deep tendon reflexes are equal and active.
The veteran offered testimony at a personal hearing in July
1984. At that time, he restated his contentions concerning
the increase in symptoms that he thought were present. He
also testified as to issues noted in the INTRODUCTION section
of this decision.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluations will be assigned if
the disability more closely approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. When, after careful
consideration of all procurable and assembled data, a
reasonable doubt arises regarding the degree of disability,
such doubt will be resolved in favor of the veteran. 38
C.F.R. § 4.3.
An extraschedular evaluation will be assigned if the case
presents an unusual or exceptional disability picture with
such related factors as marked interference with employment
or frequent period of hospitalization such as to render
impractical
the application of the regular schedular standards. 38
C.F.R. § 3.321(b)(1). The entire history of the disability
will be reviewed. Schafrath v. Derwinski, 1 Vet.App. 589
(1991).
The veteran has a 10 percent disability rating assigned for
muscle injury to Muscle Group VI, extensor muscles of the
elbow. 38 C.F.R. § 4.73, Code 5306. This contemplates
moderate injury to the affected muscle group of the minor
extremity.
A moderated disability of the muscles is defined as a through
and through or deep penetrating wound of a relatively short
track by single bullet or small shell fragment. Findings
usually include relatively small entrance and exit scars,
indicating a relatively short tract of the missile. There
are often signs of moderate loss of deep fascia or muscle
substance or impairment of muscle tonus, with definite
weakness or fatigue. 38 C.F.R. § 4.56.
38 C.F.R. § 4.56 defines a moderately severe disability of
the muscles as one which would be the consequence of a
through and through or deep penetrating wound by a high
velocity missile of small size or a large missile of low
velocity. Objective findings of such injury would include
impairment of strength and endurance of the muscle group
involved, moderate loss of deep fascia, or moderate loss of
muscle substance.
A severe injury as defined by 38 C.F.R. § 4.56 is one which
would result from a deep penetrating wound due to a high
velocity missile, or large or multiple low velocity missiles,
or explosive effects of a high velocity missile, or
shattering bone fracture with extensive debridement or
prolonged infection and sloughing of soft parts. Residual
disability would include extensive, ragged depressed and
adherent scars; x-ray findings of multiple scattered foreign
bodies; loss of deep fascia or of muscle substance; atrophy;
decreased strength and endurance and severe impairment of
function of the affected muscle group. See also 38 C.F.R. §
4.72.
A moderate impairment of the muscles of the left upper arm,
Muscle Group VI the extensor muscles of the elbow, of the
minor extremity, warrants a 10 percent rating. Moderately
severe impairment warrants a 20 percent evaluation. A 30
percent evaluation the highest possible evaluation under this
rating code, requires severe impairment. 38 C.F.R. § 4.73,
Code 5306.
It is the conclusion of the Board, that the current evidence,
when viewed in conjunction with the in-service injury, does
not demonstrate more than a evaluation rating of 10 percent.
38 C.F.R. §§ 4.47- 4.56, 4.73, Codes 5306. The appellant had
a relatively short track of a bullet. There is no evidence
of significant muscle loss or damage. There has been no
evidence of bony involvement, and nerve studies are
essentially normal. Moreover, a moderate rating
contemplates, per 38 C.F.R. § 4.56, some pain and fatigue.
The Board has considered the veteran's complaints of pain and
numbness. However, pain and loss of some function is taken
into consideration in the assignment of the compensable
rating. 38 C.F.R. §§ 4.55, 4.56. Furthermore, there is no
evidence of a shattering bone fracture, severe impairment of
function, visible or measured atrophy, an adhesive scar, or
other similar findings to support an increased evaluation for
severe muscle damage to Muscle Group VI. 38 C.F.R. §§ 4.56,
4.72, 4.73. The left upper arm SFW wound results in no more
than a moderate disability and is adequately compensated for
by the 10 percent schedular evaluation assigned. Thus, the
Board concludes that an increased evaluation for the
veteran's service connected SFW is not warranted.
In reaching our decision consideration has been given to the
potential application of the various provisions of 38 C.F.R.
Parts 3 and 4, whether or not they were raised by the veteran
as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
We
also do not find that the evidence presents such an
exceptional or unusual disability picture as to render
impractical the application of the regular schedular
criteria, so as to warrant the assignment of an
extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1). There is no evidence of frequent periods of
hospitalization or marked interference with employment due to
this disability Since the preponderance of the evidence is
against an evaluation in excess of 10 percent for SFW to the
left upper arm, the benefit of the doubt doctrine is
inapplicable. 38 U.S.C.A. § 5107(b).
ORDER
Entitlement to increased evaluation for residuals of a SFW to
the left upper arm, Muscle Group VI, currently rated as 10
percent disabling is denied.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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